No deportation to Jordan for woman who seems at risk of honor killing (for premarital pregnancy)

An interesting opinion handed down Friday by the U.S. Court of Appeals for the 6th Circuit, Kamar v. Sessions:

Kamar is a native of Lebanon and a citizen of Jordan. She was born in Lebanon in 1964, but moved to Jordan as a young child. Kamar and her family are Catholic, but adhere to Islamic cultural practices and societal traditions. Kamar's mother and sister are United States citizens. Her mother lives in Jordan and her sister lives in New Orleans. Kamar's other siblings and cousins live in Jordan.

Kamar was admitted to the United States as a B-2 visitor in June 1999. She changed her status to an F-1 student in January 2001 to pursue a master's degree. Kamar's F-1 status was terminated when she became pregnant and left school. Kamar has three sons with her husband from her first marriage, which ended in divorce in 2006. Their three sons live in Canada with their father.

In 2007, Kamar became pregnant again. She married her second husband two months before her child was born. The child is a United States citizen and is now ten years old. Kamar has no relationship with her second husband and has an order of protection against him.

The Department of Homeland Security has been trying to get Kamar deported since October 2007, because she was let in on an F-1 student visa but is no longer a student. She applied for withholding of deportation, "alleg[ing] that if she returned to Jordan, under Islamic tradition, she would be subject to an honor killing by her youngest male relative for bringing shame to her family by getting pregnant out of wedlock":

Kamar testified that her family did not approve of her divorcing her first husband and conceiving her fourth son while unmarried. She explained that the fact that she married her second husband before giving birth was irrelevant because she got pregnant before marriage. Her brothers have not spoken to her since this occurred.

Kamar testified that she fears returning to Jordan because her cousins intend to perform an honor killing on her and her child in accordance with Jordanian custom. She explained that even though her family is Catholic, they live in Jordan where the majority of people are Muslim and the law is according to Islamic law. Her family follows the local traditions. In Jordanian society, if a woman shames her family, the solution is to cleanse the family and restore its honor by killing her.

While Kamar has not had physical contact with her cousins, she testified that she received letters claiming that her cousins want to kill her and that she was told this by numerous relatives and friends. In support, she submitted a letter from her mother dated September 5, 2009, saying that Kamar's first cousin, Alias, is the cousin that is the angriest with her. It stated, "[Alias] told your sisters that he wished God took his life if he did not finish this work. Even if this was the last thing that he would do on this earth, he will kill you for your sisters."

The other letter Kamar presented was from Alias. It said, "You understand what the punishment is for a girl like you, who brings shame upon our family. Your day of punishment is coming and with God's blessing it will be very soon."

Kamar testified that if she attempted to seek help from the Jordanian government, it would place her in prison and place her son in an orphanage for protection. She said she could not relocate in Jordan, because it is a small country where everyone knows each other. Also, she is well known in the country because she used to be a teacher there and had a business.

Kamar testified that she could not alternatively move to Lebanon because she does not have a visa to be admitted into any other country. Additionally, she stated that she has not been to Lebanon since she was one year old and was not allowed to visit when she once attempted.

Mona, Kamar's sister who is also divorced, testified that their family did not like the fact that she was divorced either, but had come to accept it. However, she said that because Kamar became pregnant outside of marriage, their cousins would kill her to restore their family's honor.

She explained that it did not matter that Kamar subsequently married her second husband because Alias believes that Kamar cheated on her first husband with her second husband. This is due to a rumor spread by Kamar's first husband's family that reached Jordan. Mona asserted that if Kamar returned to Jordan, their cousins would find out and be waiting for her at the airport.

The immigration judge and the Board of Immigration Appeals rejected Kamar's argument, but the 6th Circuit sided with Kamar:

Withholding of [deportation under U.S. immigration law] is mandatory if an alien shows a "clear probability" that, if she was removed, her "life or freedom would be threatened" on a protected ground such as her "race, religion, nationality, membership in a particular social group, or political opinion." A "clear probability" means that it is "more likely than not" that the alien would be subject to persecution if returned to the country of removal. …

1. Particular Social Group

The Board did not address whether Kamar was a member of a "particular social group," and the parties do not address the issue in their appellate briefs. … Therefore, like the Board, we assume without deciding that Kamar has established membership in Kamar's professed particular social group. Kamar's professed particular social group is "women who, in accordance with social and religious norms in Jordan, are accused of being immoral criminals and, as a consequence, face the prospect of being killed or persecuted without any protection from the Jordanian government." [Record] 553, citing Sarhan v. Holder (7th Cir. 2011). Cf. Bi Xia Qu v. Holder (6th Cir. 2010) (concluding that women who are sold or forced into marriage and involuntary servitude are a social group); Al-Ghorbani v. Holder (6th Cir. 2009) (approving proposed group of women who opposed the repressive and discriminatory Yemeni cultural and religious customs that prohibit mixed-class marriages and require paternal consent for marriage); Yadegar-Sargis v. INS (7th Cir. 2002) (identifying "Christian women in Iran who do not wish to adhere to the Islamic female dress code" as a particular social group).

2. Persecution Because of Social Group Membership

… Persecution is "the infliction of harm or suffering by the government, or persons the government is unwilling or unable to control, to overcome a characteristic of the victim." … [W]ithholding of removal is "not available to an alien who fears retribution solely over personal matters." However, Kamar asserts that her life would be threatened because of Jordanian social norms that impose behavioral standards on women and permit family members to sentence those who violate these standards to death. While a family member may have a personal motivation to restore honor to his family, he carries out the honor killing because it is socially permissible. Thus, there is broader societal significance intertwined with the personal retribution. …

The probability of harm occurring in these cases is an inference based on facts in the record. Considering the evidence, it is hard to … [accept] the Board's conclusion that even if Kamar had a subjective fear of persecution, this fear was not objectively reasonable. …

Finally, we consider whether the Jordanian government would be "unwilling or unable" to protect Kamar from harm. In the country reports in the record, it has been established that governors in Jordan routinely abuse the law and use imprisonment to protect potential victims of honor crimes. These victims are not released from imprisonment unless the local governor consents, the victim's family guarantees the victim's safety, and the victim consents. One non-governmental organization has provided a temporary, unofficial shelter as an alternative.

On the other hand, successful perpetrators of honor killings typically get their sentences greatly reduced. Additionally, if the victim's family, who is usually the family of the alleged perpetrator as well, does not bring the charges, the government dismisses the case. See also Sarhan ("After reviewing the evidence of the Jordanian government's treatment of honor crimes, we conclude that … the government is ineffective when it comes to providing protection to women whose behavior places them in the group who are threatened with honor killings.").

The Board's decision outlined the Jordanian government's efforts to combat honor crimes, including placing potential victims in "protective custody." As the Ninth Circuit concluded in an analogous case, "This observation omits the fact that such protective custody is involuntary, and often involves extended incarceration in jail." While victim protection is necessary, incarceration is an insufficient solution. This practice is akin to persecuting the victim as she "must choose between death and an indefinite prison term." … This showing satisfies both of the standards for finding governmental action for purposes of withholding of removal under the Act and also those for protection under the Convention, as it amounts to "pain or suffering" that is inflicted with the acquiescence of a public official or a person acting in an official capacity. …

Substantial evidence does not support the Board's refusal to find that Kamar will probably be persecuted if she is returned to Jordan, due to her membership in the particular social group we discussed, or that the Jordanian government can or will do nothing to help her. The Board's decision with regard to those issues is reversed.

[3.] Protection Under the Convention Against Torture

To qualify for protection under the Convention, a petitioner must show that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." Unlike withholding of removal, relief under the Convention is not conditioned on proof that the alien would be persecuted on a protected ground. …

The definition of torture includes:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity.

… The Seventh Circuit has found that the Jordanian government's "solution" to protect honor killing victims is actually a form of punishing the victims of these crimes amounting to mental "pain or suffering," which is "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." … Given the likelihood that Kamar would be subject to involuntary imprisonment at the hands of the Jordanian authorities, resulting in mental pain and suffering, the Board erred in concluding that Kamar failed to establish that it was more likely than not that she would be tortured upon removal to Jordan. We grant the petition with respect to the Board's reasoning under the Convention.